INTRODUCTION
NO document is more critical to free movement of people across international borders than that rectangular booklet commonly called a ‘passport’. Without it, a person is without an identity – at least outside his or her country of origin. Neither a driver’s licence, voter’s card or other means suffices in such circumstances and he or she is effectively stateless and a citizen of the world.
Unfortunately, such people have few, if any, legal and diplomatic protection and are often in a legal ‘no-man’s’ land, where they belong to no one and are on their own. A case in point is the curious story of a man who lived in Charles de Gaulle airport in Paris, France, for 18 years (between 1988 and 2006). Mehran Karimi Nasseri had arrived at the airport without proper documentation and couldn’t get on a plane without a passport. If he left the airport to go into France, he would be arrested for not having ID papers.
While Mr Nasseri’s case is probably the most dramatic (it even attracted interest from famous Hollywood director, Steven Spielberg, who reportedly paid him $250,000 for the rights to his story) illustration of the value of a passport, it is by no means an isolated one. Countless people have found (and continue to find) themselves in the same legal limbo and black hole- sometimes, through no fault of theirs, but rather, as a result of State action in the form of passport seizures, retention, revocation and deprivation. So what exactly is a ‘passport’, and what are the implications of its denial, seizure or revocation under the law? Let’s find out . . .
MEANING OF ‘PASSPORT’
According to Black’s Law Dictionary Eighth edition, page 1156, ‘a passport is a formal document certifying a person’s identity and citizenship so that the person may travel to and from a foreign country’.
It is universally accepted evidence of a person’s identity and nationality (Burdick H. Brittin, International Law for Sea Going Officers, 4th edition, 1981, pg. 183). It does not (however) give its bearer the right to travel to another country, but it does request that other governments permit him to travel in their territories or within their jurisdictions (ibid). It also entitles him to the protection and assistance of his own diplomatic and consular officers abroad (ibid).
A similar definition is contained in Webster’s New Explorer Encyclopedic Dictionary, page 1335, thus:
“A formal document issued by an authorised official of a country to one of its citizens that is usually necessary for exits from and re-entry into the country, that allows the citizen to travel in a foreign country in accordance with visa requirements, and that requests protection for the citizen while abroad”
Case law is replete with similar definitions (See, for example, R. v. Secretary of State ex parte Everett (1989) 1All E.R. 655; and Sawhney v. Asst Passport Officer (1967) 335 C.R. 252). However, the leading Nigerian judicial authority on the subject is the decision in the famous case of AGBAKOBA v THE DIRECTOR, SSS (1994) 6 NWLR Pt. 351 pg. 475 @ 495., where the Court of Appeal, Ayoola, JCA as he then was) opined that: “in so far as a passport is a certificate or identity and nationality and at the same time a request from one state to another to grant entry to the bearer, it stands to reason that a passport is normally an essential document in the exercise of a discretion by a foreign State, which at international law, it has in the reception of aliens into its territory. To that extent, a passport is normally an essential document for entry into foreign Countries”.
The issue went on appeal to the Supreme Court, where the apex Court affirmed the definition of the “passport” in Section 6 of the Passport (Miscellaneous Provisions) Act thus: “Passport means a document of protection and authority to travel issued by the competent Nigerian officials to Nigerians wishing to travel outside Nigeria and includes, as defined in subsections (3) and (4) or section 1 of this Act, the following-
(a) A standard Nigerian passport;
(b) A Nigerian diplomatic or official passport;
(c) A Nigerian pilgrim’s passport or Seaman’s card of identification.
The court then, opined that:
“Being in possession of and producing such passport granted as stated above allows the citizen to leave the courts and travel to another country without hindrances. It affords him assistance and protection when travelling in such other country”.
In the same case (ibid), the apex court affirmed the following definition of ‘passport’ in Section 52(1) of the Immigration Act (Cap. I1, LFN, 2004), viz:
“Passport means with reference to the person producing it, a travel document furnished with a photograph of such person and issued to him by or on behalf of the county which he is a subject of a citizen and for a period which according to the laws of that country, has not expired, and includes any other similar document approved by the Minister establishing the nationality and identity of the person to whom it refers to the satisfaction of a immigration officer”.
PASSPORTS UNDER THE CONSTITUTION
The foregoing demonstrates the centrality of passports as instruments of international travel; without one, movement across national borders – legitimate movement – is virtually impossible (or, at least, it is problematic). This invariably leads to a consideration of the constitutional right of freedom of movement. This is one of the fundamental rights guaranteed under chapter IV of the 1999 Constitution of the Federal Republic of Nigeria. Specifically, Section 41(1) thereof provides that “every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom”.
It can be seen that this provision does not, in terms, prescribe the possession of a passport as a condition either for entry into Nigeria or exit therefrom. Nor does the immediate subsection (2) thereto, which, for ease of reference, is as follows:-
“(2)Nothing in subsection (1) this section shall invalidate any law that is reasonably justifiable in a democratic society- (a) imposing restrictions on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) providing for the removal of any person from Nigeria to any other country to-
(i) be tried outside Nigeria for any criminal offence, or
(II) to undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty: provided that there is reciprocal agreement between Nigeria and which other Country in relation to such matter”
Beyond the foregoing provisions, Section 45(1) of the Constitution adds a further layer of derogation to the right of freedom of movement by providing that nothing in that clause (i.e. Section 41, inter alia) shall invalidate any law that is reasonably justifiable in democratic society-
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.
That being the case, the question is whether the provisions of the Passports (Miscellaneous Provisions) Act and the Immigration Act which prescribe the possession of a passport by a citizen of Nigeria as a condition to exercising his fundamental right to ingress and egress out of Nigeria are reasonably justifiable with the parameters or circumstances spelt out in the aforesaid provisions of Section 41(2) and 45(1) of the Constitution. Is the requirement of a passport under the law a valid derogation from the fundamental right of a citizen of Nigeria to move freely across our international borders? Are the provisions of such laws “reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the right and freedom of other persons” within the contemplation of Section(45) of the Constitution?
Before going further, it is pertinent to point out that the qualification prescribed by subsection (2) of section 41 are more or less replicated (or at least contemplated and can, therefore, be accommodated) within the stand-alone restrictions on the right, i.e. of freedom of movement, (amongst others) under section 45(1) of the Constitution. Accordingly, we can safely concentrate on interrogating the legitimacy or validity of the requirements of passport vis-a-vis the right to freedom of movement under the Constitution.
As previously stated, the question is whether the possession of an international passport by a Nigerian citizen as a condition for entering or leaving Nigeria reasonably justifiable under any law? Is it a valid derogation from our right of free entry into Nigeria and free exit therefrom? Are there any concerns of, or risks to, public safety, public health, public morality, public order or defence involved, were such restrictions not in place? Can such concerns not be addressed by the scheme of national identification which is currently in place?
Are such concerns not more legitimate and valid in respect of non-Nigerians? Why should a Nigerian need a separate document (apart from his national ID card) in order to enter Nigeria? Why should the State be concerned about the requirements for entering other Sovereign States to the extent of appropriating to itself the right to seize, withhold or revoke a passport? Is it the passport that confers nationality or otherwise? Is a person a citizen of Nigeria only if he or she possesses a Nigerian passport? This conveniently leads us to the next question, which is . . .
Thought on the week
“No level of border security, no wall, doubling the size of the border patrol, all these things will not stop the illegal migration from countries as long as a 7-year-old is desperate enough to flee on her own and travel the entire length of Mexico because of the poverty and the violence in her country”. (Jeh Johnson).
